Public pictures, public areas, and tricky restrictions

The evolution of photography has been extraordinary, yet protections - and restrictions - remain the same

Bill Cresenzo Times-News @bcresenzotn

In 2004, more than 1,000 people, including the governor of Oklahoma, attended the funeral a National Guard soldier killed in Iraq.

The funeral was held in a school gym. Media were invited, but were asked to refrain from taking photographs of the open casket.

However, a photographer from Harper’s Magazine did take a photo.

Several months later, the magazine published it.

Fast forward to 2018.

“Someone — probably unaffiliated with media — would likely have snapped a photo and put it out [on social media] immediately,” said Jonathan Jones, an attorney and the director of the N.C. Open Government Coalition at Elon University.

Jones uses the example to illustrate how drastically the world of photography has changed over the past 15 or so years.

“It used to be that only photographers were regularly carrying around cameras,” Jones said. “Sometimes they would be in the right place at the right time to capture an event as it was happening, but often they would arrive a few moments later and capture the aftermath. Now that it is easy for anyone to record, people are capturing a lot more real-time incidents in public spaces.”

That seismic shift has raised questions about privacy and where people can film and where they cannot.

Yet despite those questions, the answers remain the same.

They can record

“Taking photographs and video of things that are plainly visible in public spaces is a constitutional right,” the ACLU points out. “That includes police and other government officials carrying out their duties.”

“We do regularly communicate with our staff about the public’s right to film,” he said. “We are open and transparent, so this really is not an issue for us.”

“As long as they are in a lawful place and it’s not interfering in any way, they can record,” Capt. Mark Rascoe added.

Traffic stops, however, can be tricky, said Rascoe, who heads the department’s patrol division. If a passenger is filming, it is typically a nonissue. But if the driver is filming, it can impede the officer’s duties — if drivers are focused on recording, they aren’t as focused on providing officers with the attention and information they need, such as driver’s licenses, registrations and proof of insurance.

Whatever the case, Rascoe cautions motorists to be cautious themselves when it comes to reaching for a cellphone or another electronic device.

Jones concurs.

“They should be careful not to reach for the cellphone or move it in an aggressive or hostile manner as we have seen several instances around the country where officers have mistaken cellphones, cameras or camera equipment for weapons,” he said.

Misconceptions

In general, a public space is defined as any space that is used by, well, the general public.

That includes parks, streets, plazas, beaches and common areas of offices and apartment buildings. A public place is where there is no expectation of privacy.

It also includes some private property where people are clearly visible from public spaces, Jones said.

“When I am standing in my yard, I have no expectation of privacy because my neighbors or anyone walking down the street can easily see me,” he said. “Anyone can film me while I stand there. “

And it goes both ways.

“You have the right to film in public, and you should be aware that when you are in public, others have the right to film as well,” Jones said. “There are a lot of common misperceptions that people need permission when they often don’t.”

However, there can be gray areas in what constitutes a public space. For example, a big box store such as Wal-Mart may be considered public to many, yet the store itself is privately owned, and store owners can forbid photography within their walls.

“Private property owners have the right and ability to control filming that occurs on their property,” Jones said. “If we’re in a shopping mall or a large retail store, they can ask as us to stop filming or force us to leave. “

For its part, Wal-Mart forbids photography in the store.

“We make every effort to enforce the policy,” said Casey Steheli, a Wal-Mart representative.

If associates see people filming, they will politely ask them to stop, Steheli said.

Growing up cellular

Rule 8 of the Alamance Burlington School System Student Code of Conduct dictates that students should not have their electronic devices in the “on” position during school hours.

School principals, however, can authorize the use of devices for educational purposes, PIO Jenny Faulkner said.

“It is becoming more and more common for teachers to post short videos and photos on Twitter to share their classroom experiences in real time and capture the engagement of students in their lessons,” she said.

Superintendent Bill Harrison is very active on Twitter, often posting photos of students at the schools he visits.

Parents must sign a release form that gives permission for a student’s image to be used in news stories and on social media.

Faulkner acknowledges that students are “practically growing up with a cellphone in their hands, are adept at it, and adults are following suit.

“Many school administrators and teachers as well as district administrators utilize social media on a daily basis to highlight activities and accomplishments and engage parents and the public with what today’s educational experience is like,” Faulkner said. “We encourage the appropriate use of technology by teachers and students to engage the public in education.”

Ethics

As far as the future is concerned, Jones said that any attempt to regulate taking photos or video in public would difficult because of the constitutional protections.

In fact, the father of the soldier killed in Iraq sued Harper’s Magazine for invasion of privacy, among other things. The case went all the way to the U.S. Supreme Court. The father lost.

Despite Harper’s win, Jones said, the case illustrates ethical questions — questions that once were reserved mainly for journalists but that many people face today.

“The [Harper’s] photo is as respectful a photograph of a dead body as is possible, but it still raises questions about whether the photograph should have been taken,” Jones said. “Just because we have the right to film in public doesn’t always mean we should.”

Reporter Bill Cresenzo can be reached at bcresenzo@thetimesnews.com or 336-506-3041. Follow him on Twitter at @BillCresenzoTN.

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